JUDGMENT V.K. Mehrotra, J. 1. BOTH these appeals arise out of the judgment dated November 27, 1976 of the VI Additional Sessions Judge, Varanasi in S. T. No. 76 and 244 of 1976 by which Antu (appellant in Criminal Appeal No. 2815 of 1976) and Bedi (appellant in Criminal Appeal No. 2800 of 1976) have been convicted under sections 307 IPC and 307 IPC read with section 34 IPC and directed to undergo rigorous imprisonment for five year and two years respectively. 2. ONE Mewa Lal was the victim of an assault at about 10-00 a. m. on July 8, 1975 in Mohalla Jangambari at Varanasi. It is said that at the instigation of appellant Bedi, Antu gave him several blows with a knife. The medical examination of Mewa Lal by Dr. V. Kumar (PW 5) revealed that there were as many as five injuries on his person, two of which were incised wounds and one a punctured wound. The injuries were as under :-(injuries quoted-Ed.) On a reference made by Dr. Kumar, PW 7 Dr. P. K. Tandon performed an operation in an attempt to save the life of Mewa Lal. He succeeded in doing so. In a report lodged at police station Dashaswamedh at a distance of 1-1/2 furlong from the place of assault art 10.20 a. m. the same day, Mewa Lal gave out that there was ill will between him and the said appellant on account of failure of Bedi to vacate the house, belonging to the reporter, in his tenancy. Appellant Antu, according to the allegations in this report, was an associate of appellant Bedi. At about 10.00 a. m. on the date of the incident, proceeds the report, when reporter Mawa Lal was carrying water from the water tap to his house, both the appellants met him in the lane. Antu took out a knife and upon the exhortation of Bedi to kill him, assaulted him with it. Kalloo (PW 1), Suddhoo (PW 3) and others of the mohalla are said to have arrived there on the screams of the injured persons. They are said to have seen appellant Aatu assaulting the reporter. 3. THE case registered on this report was investigated by PW 8 Sub-Inspector Akhlaq Ahmad who eventually (submitted a charge-sheet against the two appellants. 4. Kalloo (PW 1), Suddhoo (PW 3) and others of the mohalla are said to have arrived there on the screams of the injured persons. They are said to have seen appellant Aatu assaulting the reporter. 3. THE case registered on this report was investigated by PW 8 Sub-Inspector Akhlaq Ahmad who eventually (submitted a charge-sheet against the two appellants. 4. AT the trial, PW 1 Kalloo, 'who had scribed the first information report of Mewa Lal, apart from the injured PW 2 Mewa Lal himself as well as Suddhu PW 3 and one Km. Madhu, a girl aged about ten years, came forward to depose to the facts of the case. During the course of his testimony, however, Kalloo Ram did not support the prosecution case in its entirety. He did not incriminate Bedi. Victim Mewa Lal, however, gave a detailed account of the incident and the facts preceding and succeeding it. He was substantially corroborated by PW 3 Suddhu and PW 4 Km. Madhu. Relying upon the testimony of these three witnesses, the Trial Judge came to the conclusion that the assault on Mewa Lal had been made by appellant Antu at the instigation of appellant Bedi. He, therefore, convicted and sentenced them as aforesaid. Appearing for appellant Bedi,Sri R. P. Srivastava, his learned counsel, has urged that even from the testimony of the prosecution witnesses themselves it appeared doubtful that appellant bedi was actually present at the scene of the incident or that he exhorted Antu to assault Mewa Lal. He has drawn my attention to some portions of the statement made by the eye-witnesses in the case. In the first information report, it was alleged by reporter Mewa Lal that the incident had taken place on account of enmity that appellant Bedi had with him, in his statement at the trial, the said stand had been virtually given up. There seems to be substance in his submission. 5. AS noticed above, the allegation in the first information report essentially was that on account of dispute between them in regard to the house belonging to Mewa Lal which was under the tenancy of appellant Bedi, the latter exhorted appellant Antu to assault Mewa Lal and it was at this stage that appellant Antu actually gave blows with his knife the the victim. In his evidence at the trial, however, the reporter came forward with the case that there was also enmity between him and appellant Antu and his family members and that appellant Bedi was on friendly terms with appellant Antu. On that account, it was suggested, that appellant Antu joined hands with appellant Bedi in the incident. In the cross-examination, the reporter has categorically asserted that he never asked appellant: Bedi to vacate the house in his tenancy nor was there any dispute between them in regard to that tenancy. The testimony of PW 3 Suddhu does not concern itself with this aspect of the case but from the testimony of PW 4 Km. Madhu it is obvious that appellant Bedi was a quiet type of man who did not involve himself much in disputes and used to go away to work in the morning and came back in the; night. It was also asserted by the witness that she was naming appellant Bedi on account of the influence of reporter Mewa Lal and his wife. 6. APPELLANT Bedi had set up a plea of alibi which was not accepted by the trial Judge. For purposes of the present case, it is really not necessary to record a finding about the correctness or otherwise of the plea of alibi taken by this appellant. However, from the statement of the various eye-witnesses including the victim Mewa Lal, it does appear that it cannot be conclusively found that appellant Bedi was actually present at the spot at the time of the incident or that appellant Antu gave the knife blows upon his exhortation. There does not, even according to the evidence of Mewa Lal, the injured, appear to be any specific reason for this appellant to have behaved in the manner attributed to him by the prosecution. In these circumstances, he is entitled to the benefit of doubt. The case of appellant Antu is, however, on a different footing. He, undoubtedly, was a young man aged about 17 years at the time of the incident but eye of victim Mewa Lal (PW 2) clearly gives out the reasons for the assault that this appellant made on him. The incident took place at about 10.00 a. m. Within twenty minutes thereof, a report was lodged about it at the police station. The incident took place at about 10.00 a. m. Within twenty minutes thereof, a report was lodged about it at the police station. There is a suggestion that this report was not actually dictated by the reporter himself yet the fact remains that the incident in which Mewa Lal sustained several injuries was reported to the police very soon after its occurrence. 7. THE presence of PW 3 Suddhu at the place from where he claims to have seen the incident is assailed on the ground that PW 2 Mewa Lal himself acknowledged during his cross-examination that the witnesses reached the scene of the incident after he had raised an alarm and not before it. This alarm, according to the testimony of Mewa Lal, was raised by him after he had already received some blows. It is argued on the basis of this statement that the presence of this witness and the claim that he saw the incident can not be readily accepted. 8. THE testimony of P. W. 4 Km. Madhu is challenged primarily on the ground that she is not mentioned as a witness of the incident in the first information report. It is also argued that from the statement made by various witnesses in this cases it does not appear that she is really the daughter of victim Mewa Lal as claimed by him. It is also urged in regard to this witness that being of tender age, she was prone to depose to things which she may not actually have witnessed. In this connection my attention has been drawn also to that portion of her statement in cross-examination where she acknowledged that she was stating things as told to her by Mewa Lal and his wife. As far as the case of the prosecution against appellant Antu is concerned, it appears clearly established even by omitting consideration of the testimony of PW 3 Suddhu and PW 4 Km. Madhu. The assault upon Mewa Lal was attributed to appellant Antu alone. It is an occurrence which has taken place in broad day light. There is hardly anything on record from which it may be inferred that it took place at a time when the assault could be said to have been made by some unidentified assailant. The victim was clearly in a position to locate the real culprit. It is an occurrence which has taken place in broad day light. There is hardly anything on record from which it may be inferred that it took place at a time when the assault could be said to have been made by some unidentified assailant. The victim was clearly in a position to locate the real culprit. The promptitude with which the incident was reported to the police and appellant Antu named as the assailant lends credence: to the prosecution version. There is nothing in the statement of PW 3 Mewa Lal, the victim, from which any doubt may be cast upon the identity of the person who has assaulted him. The conclusion, therefore, of the trial Judge that appellant Antu was the real assailant who caused injuries to Mewa Lal is well founded. 9. THE submission next made by learned counsel for appellant Antu is that assuming that prosecution version of the incident to be correct, the conviction of appellant Antu under section 307 IPC was not justified. It has been urged by Sri A. D. Giri, appearing for Antu that the offence was at best one under section 326 IPC. This submission was made on the basis of the decision of the Supreme Court in the case of Jai Narain Mtsra v. State of Bihar, AIR 1972 SC 1964. 10. THE submission of Sri Giri in this respect appears to be well founded. The circumstances appearing from the prosecution case do not make out that the assault upon Mewa Lal by appellant Antu was with an intention to cause his death. The mere fact that of the five injuries found iinflicted by this appellant one, namely, injury no. 3 which was a punctured wound at: the left side of chest, was dangerous in nature does not necessarily make the offence one under section 307 IPC. The remaining injuries were found to be simple. The prosecution has itself urged that the injuries were caused by this appellant on the exhortation of another person. May be, he was prompted to do so on account: of his young age. The medical evidence in the case does not prove that the injury, characterised as dangerous by the doctor, caused by this appellant "would have necessarily caused death but for timely medical aid." 11. May be, he was prompted to do so on account: of his young age. The medical evidence in the case does not prove that the injury, characterised as dangerous by the doctor, caused by this appellant "would have necessarily caused death but for timely medical aid." 11. IN these circumstances, it cannot necessarily be inferred that appellant Antu caused the injuries with an intention of causing death of Mewa Lal or with the knowledge that it would result in his death. The offence committed by him would, therefore, fall under section 326 IPC. 12. IN the result, the appeal of appellant Bedi is allowed. The appeal of appellant Antu is allowed in part. His conviction under section 307 IPC is set aside. Instead, he is convicted under section 326 IPC. In consequence, the sentence of five years rigorous imprisonment awarded to him by the Trial Judge is set aside. He is directed to undergo rigorous imprisonment for a period of three years. Both the appellants are en bail. Bedi need not surrender. His bail bonds are discharged. Appellant Antu shall, however, surrender forthwith to serve out the sentence. Ordered accordingly.